“I Used to Think the Law Would Protect Me”

New Law Promises to Reduce Sexual Assault Backlog, but Funding Remains Major Concern

Summary

I learned a lesson when I found out that the police had
closed my case without even interviewing [the rapist], or testing the rape kit.
I learned that you cannot trust that the justice system will bring hope to you
or bring your rapist to jail. You cannot hope that what went wrong will be
righted.

—Justine, Springfield, IL, June 23, 2007

When a victim has a rape kit collected, she is doing everything
that is asked of her in the immediate aftermath of a traumatic crime. How can
we, on the one hand, encourage every rape victim to get a kit done regardless
of whether she knows the suspect or not, while on the other accept that police
discretion means many of these kits will never get tested? If we are going to
go to the considerable and worthwhile effort to collect rape kits, the least we
can do is test them to see what is there.

Carrie was a high school student in 2008 when she was raped
in an alleyway by her home in northern Illinois.[1] The man was a
family friend of her father’s, but someone she barely knew. Immediately
after the rape, Carrie went to the local hospital to have her body examined for
a rape kit.

When police came to the hospital to interview Carrie, they
indicated that they previously picked up the individual in question—for
sexually assaulting the teenage daughter of a family friend. The police took
Carrie’s rape kit with them when they left the hospital, and Carrie
assumed it was tested.

After that night in the hospital, Carrie did not hear back
from the police. She called once a day, then once a month. Six months after her
rape Carrie finally received a call back from the prosecutor who reviewed her
case. The prosecutor told her she was keeping the case open, but
“didn’t have any evidence to move it forward.” Carrie inquired
about the results of her rape kit, and was informed that it had not been tested
because her case “would not be a strong candidate for prosecution.”
When she asked the prosecutor’s office why, she was told that “it
is too hard to prove that what happened to you was rape. You may think its
rape, but it’s your word against his.”

When a
person is sexually assaulted and reports the crime, she will be asked by the
hospital staff or the police to consent to the collection of a rape kit. A
rape kit is the DNA evidence gathered from an examination of the
victim’s body, a process which can last between four and six hours. In
Illinois, the police collect the rape kit evidence from the hospital, and are
responsible for sending the rape kit to the crime lab for testing at the
request of either the police or a state’s attorney’s office
(“prosecutor’s office”). Testing a rape kit can identify
the assailant, confirm a suspect’s contact with a victim, corroborate
the victim’s account of the sexual assault, and exonerate innocent
defendants.

Carrie mentioned that the police had told her they had
arrested the suspect before on suspicion of rape, but the prosecutor told her
that there was not enough evidence in either case to move them forward. In
fact, the prosecutor told Carrie, “Maybe if we get this guy coming in
again for rape, we can move forward. In acquaintance rapes, it helps to
establish a pattern.” Carrie asked whether the prosecutor’s office
would test her kit to see if it could link her rapist to any other cases, but
the prosecutor declined the suggestion.

Carrie requested the police file in her case and was
provided with a redacted version which indicated that the police had not
interviewed the suspect, not interviewed other potential witnesses, nor
considered the hospital examiner’s report, which indicated “vaginal
swelling and tearing consistent with forced penetration.” As far as
Carrie knows, her rape kit continues to sit in police storage, untested.

Carrie is not alone. In Illinois, of the 7,494 rape kits
entered into law enforcement evidence over the past fifteen years by the 127
agencies that provided Human Rights Watch with rape kit data, only 1,474, or
19.7 percent, of rape kits booked into local law enforcement agencies could be
confirmed as tested. This means that only one in five rape kits collected by
law enforcement were definitely tested.[2]
In Human Rights Watch interviews, the Illinois State Police indicated that a majority
of sexual assault cases sent to the crime laboratory are eventually tested,
although we were not able to confirm that using data received from local law
enforcement.

Untested rape kits in Illinois represent lost justice for
the victims who reported their rape to the police; many have lost faith in the
criminal justice system. As one rape survivor told Human Rights Watch,
“When I learned my kit would not be tested, and my case closed, I thought,
why did I even report my rape? What was the point?”[3]

This report is the second installment in our national
investigation of unprocessed rape kit evidence, and the failure to investigate
and prosecute sexual assault in the US.[4]Illinois, according to the most recent Federal Bureau of Investigation (FBI)
data, makes arrests in only 11 percent of the reported cases of rape (the
national average is 22 percent), and the rape kit backlog both contributes to
and results from this failure of justice.

In 2004 after news reports revealed thousands of untested rape
kits in Illinois, then-Governor Rod Blagojevich announced that the state would
attempt to address this backlog, and helped promote the passage of a law
requiring the testing of all rape kit evidence by the state crime lab.[5]

In May 2010, during the course of Human Rights Watch’s
research into the continuing rape kit backlog in Illinois, the state
legislature, under the leadership of the Illinois Attorney General Lisa
Madigan, passed a second law—the most comprehensive rape kit testing
reform law in the US—to become the first state to definitively require
that every booked rape kit be tracked and sent to the crime lab for testing. The
governor is expected to sign the legislation but has not at the time of this
writing. While the bill is a significant step forward and provides a potential
reform model for other states to follow, the legislation’s success will
require a commitment of resources, oversight, and enforcement from the
legislature, the governor, and other major enforcement bodies.

The first law, the Sexual Assault Survivors Emergency
Treatment Act of 2004, mandated that rape kits collected by Illinois state and
local police on or after January 1, 2005, and sent to the Illinois State Police
for testing were required to be tested by the ISP crime laboratory within one
year. It also required the testing of every kit sent to the crime laboratory
before January 1, 2005, within two years of the law’s enactment.[6]

The 2004 law’s provisions were vague and confusing as
to whether they required every rape kit collected by law enforcement be sent to
the crime lab for testing. Human Rights Watch found only six law enforcement
agencies that thought they were obligated under the 2004 law to send every kit
to the crime lab. As a result, the law seems to have had a limited effect on
rape kit testing policies of police departments in Illinois. It is also not
clear whether the law helped the ISP reduce the rape kit backlog in their crime
laboratory, possibly because of a significant loophole in the 2004 law, that
testing of every kit within the timeframes specified would only occur “if
sufficient staffing and resources are available.” While the Illinois State
Police may have needed more funds to eliminate the rape kit backlog, the auditor
general, in a report issued in 2009, found that the ISP misused some of the
state funds they were given to test rape kits and other DNA evidence.

Capacity constraints and limited resources may explain the
number of untested rape kits at the crime laboratory, but cannot explain the
large numbers of untested or unaccounted-for rape kits in police custody. Most
individual police department policies that Human Rights Watch reviewed allow
detective or department discretion in deciding which rape kits to send to the
crime lab. Kit processing may be stymied on the level of investigating
officers, who exercise their discretion not to send the kits to laboratories
for any number of reasons; for example, if they presume that in cases of
acquaintance rape the collected evidence is unnecessary, or that, even without
interviewing a suspect, the case is too weak to move forward.

Some jurisdictions in Illinois empower their local
prosecutors (state’s attorneys) to conduct what is known as a “felony
review” of each potential criminal case in order to approve charges
(other jurisdictions conduct similar reviews but may not officially refer to it
as “felony review”). The state does not collect information on the
ultimate disposition of each case of sexual assault. But while Illinois courts
have ruled that felony sexual assault prosecutions may proceed where there is “credible
victim testimony,” state’s attorneys reject many of these cases
even in the presence of such testimony. This failure to lodge charges then
indicates to police that processing collected rape kits would be futile. State’s
attorneys also seem to stop the processing of kits by intervening directly with
state crime labs, according to testimony collected by Human Rights Watch.
Overall, the failure to process rape kits reflects an inadequate law
enforcement response to the crime of sexual assault, one which violates the
human rights of victims.

In response to the continuing backlog of cases since the
2004 law and news of significant numbers of untested rape kits in police
storage facilities, and to address inadequacies of clarity and enforcement in
the prior legislation, in May 2010 the Illinois legislature passed the Sexual
Assault Evidence Submission Act, a landmark rape kit reform which was
championed by Illinois Attorney General Lisa Madigan. The bill significantly
expands upon the 2004 law—it mandates that every rape kit be sent to the
crime lab within 10 days of its entrance into local law enforcement evidence
and be tested within six months of its receipt by the crime lab; adds rape kit
data reporting requirements; and requires the Illinois State Police to produce
a plan to test every new rape kit it receives and to eliminate the current
backlog. The law does contain the same testing requirement loophole that may
have contributed to the mixed results of the 2004 Sexual Assault Survivors
Emergency Treatment in reducing the crime lab backlog: the timeframe for crime
lab analysis is contingent upon the availability of “sufficient
staffing and resources.” The Illinois State Legislature has not yet
appropriated any funds for the police and crime labs to implement this law.

According to the law’s provisions, the legislature may
authorize funding for the law once the Illinois State Police submits a plan for
analysis which will include resource needs. This plan is due to the legislature
no later than February 15, 2011. Given that police departments across the state
currently do not submit to the crime lab all of the rape kits they enter into
evidence, successful implementation of the law will require, among other
things, an increased fiscal commitment from the legislature to make this good
law a practical reality. If the necessary resources are not made available to
law enforcement and the crime laboratories to test every rape kit, Illinois
must adopt a uniform decision-making process to determine which rape kits are
tested. Objective criteria that are relevant to the probative value of the
evidence to the case must guide this process.

During the course of our research into the rape kit backlog
in Illinois, we encountered numerous obstacles which made it difficult to get
an accurate account of the status of rape kits collected in the state,
obstacles that also affect treatment of sexual assault in the state’s
criminal justice system. There is a distinct lack of uniformity among
jurisdictions in how rape kits are tracked by police and sheriff’s
departments once booked into their evidence storage facilities. While the new
2010 law addresses some of these issues, at the time of our research, there
were no state guidelines regarding how jurisdictions should track rape kits,
record the status of rape kits, or format chain of custody and incident reports.
Until Human Rights Watch requested the rape kit data from jurisdictions, many
had never counted their untested rape kits or set up a system to track such
kits.

Furthermore, some of the largest jurisdictions in Illinois
did not respond to our data requests by the time this report went to press.
Chicago, the state’s largest urban area by far with over 2.7 million
people and at least 21 percent of the state’s population, provided
limited data to Human Rights Watch; they agreed to audit the rape kits
collected over the past two years but did not respond to our request for more
comprehensive data. And although the Illinois Office of the Attorney General
public records response training program given to over 500 law enforcement
officers and 12,000 public agencies in the state, jurisdictions failed to
respond appropriately to our public records requests.

There were also egregious instances of agencies providing,
or failing to properly redact, sensitive identifying information in their public
records responses. More than 25 agencies supplied victims’ names and 22
agencies also gave suspects’ names. In total, more than 1,000
victims’ names—nearly 100 of them child victims—were handed
over to Human Rights Watch from public records requests. Victim and suspect
addresses, telephone numbers, and social security numbers were also given by a
number of law enforcement agencies. Several agencies submitted the private
information of juvenile victims. DNA test results were also mailed to Human Rights
Watch in response to the public records request, which did not—and could
not legally—have sought such information. These errors in public record
data management occurred despite the fact that the Illinois Office of the
Attorney General offers comprehensive data training to law enforcement offices
in Illinois. It is troubling that, despite receiving adequate public records
training, law enforcement departments continue to make these serious mistakes.

Despite these obstacles, we have been able to capture a
significant portion of the number of untested rape kits in Illinois. In total,
from rape kit information provided by 127 law enforcement agencies to Human
Rights Watch, at least 7,458 rape kits were entered into law enforcement storage
in Illinois in the past 10 years, of 16,738 rapes reported in recent years. Only
31 percent of reported rapes resulted in the administration of a rape kit. Law
enforcement agencies reported that 3,547 (47.6 percent) of these kits were sent
to crime labs, and knew that only 1,474 (19.7 percent) of the kits were tested
although the Illinois State Police told Human Rights Watch a majority of rape cases
sent to them are eventually tested. Police and sheriff’s departments also
reported that a total of 4,173 kits were presently stored in local facilities,
38 rape kits were stored with the Illinois State Police, and 1,890 kits were known
to be destroyed.

Figure 1—Status of Rape Kits Entered into
Evidence by Police and Sheriff’s Departments in Illinois

Source: Data received in response to Human Rights Watch public records requests.

In addition to untested rape kits in police storage
facilities, Human Rights Watch also found other failures reflective of the
inadequate law enforcement response to reported sexual assaults: a shortage of
sexual assault nurse examiners (SANEs) to perform rape kit collections;
insufficient hospital treatment facilities for rape victims; and testing delays
at the state crime laboratory.

This report focuses primarily on the number of untested rape
kits Human Rights Watch found in police storage facilities, using data from
Human Rights Watch public records requests. It also points to larger concerns
with the state crime lab’s current capacity to handle the influx of
untested rape kits it will receive from police departments when the 2010 Sexual
Assault Evidence Submission Act goes into effect, assuming it is signed by the
governor. The 2010 law will require the Illinois State Police to come up with a
plan to test this influx of rape kits, and we urge the legislature, when
presented with the plan, to appropriate the necessary funds required to
implement the ISP plan.

If Illinois public officials wish to implement good public
safety policy standards and conform to human rights law they should move
decisively to comply with the 2010 law and eliminate untested rape kits in
Illinois, and more vigorously investigate and prosecute reported cases of rape.
Rape victims deserve justice and the people of Illinois expect law enforcement
to do all they can to prevent future crime. International human rights law
requires police to investigate reports of sexual violence and take steps to
protect individuals from sexual assault. The United States is party to a number
of treaties that acknowledge rape as a human rights abuse and require the US to
ensure the protection of its citizens from sexual assault and rape. These treaties
also entitle victims of violations to an effective remedy, placing obligations
on the US to ensure there is effective access to justice when such crimes are
committed.

For example, the United States is party to the International
Covenant on Civil and Political Rights (ICCPR), and to the Convention against
Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment
(“Convention against Torture”), both of which set out important
standards for victims of rape.[7]
The ICCPR guarantees the right to security of the person under Article 9, which
includes a right to protection of bodily integrity against third parties.[8]
Both the Convention against Torture and the ICCPR (under Article 7) guarantee
the right to be free from torture and cruel, inhuman, or degrading treatment.[9]
International tribunals and other bodies have established that rape is covered
by these prohibitions on torture.[10]

The United Nations Human Rights
Committee (HRC) has made it clear to states party to the ICCPR that they must “take
appropriate measures or … exercise due diligence to prevent, punish,
investigate or redress the harm caused by such acts by private persons or
entities.”[11]
The Committee against Torture requires states party to prevent and protect
victims from gender-based violence and rape by exercising due diligence in
investigating, prosecuting, and punishing perpetrators—even private
actors—of rape and sexual assault.[12]

Specifically, the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) obligates states party to combat
discrimination against women.[13]
The Committee on the Elimination of Discrimination against Women, the treaty
body that interprets and monitors compliance with CEDAW, has affirmed that
violence against women is a form of discrimination against women, and that
states party to it should have effective legal, preventive, and protective
measures in place to provide justice for victims, hold offenders accountable,
and protect society from future acts of sexual violence.[14]
While the US has not ratified CEDAW and is therefore not a full party to the
treaty, it did sign the treaty in 1980 and therefore still bears a number of
legal obligations including, at a minimum, not to act in a way that would
undermine the intent and purpose of the treaty.[15]

The Inter-American system, of which the US is a member, pays
special attention to violence committed against women and children.[16]
The Inter-American Convention on the Prevention, Punishment and Eradication of
Violence against Women (“the Convention”) prohibits violence
against women and affirms a woman’s right to physical integrity and security.
It further requires state parties to act with “due diligence to prevent,
investigate and impose penalties for violence against women.”[17]
Since rape is a crime that is primarily committed against women, states party
to the Convention have a special obligation to respond to and prevent rape and
sexual assault. The United States is one of three members of the Organization
of American States that has not ratified the Convention.[18]

Bearing in mind these standards, governments should take the
necessary measures to avoid the significant consequences of delayed or denied
justice for victims of rape. Illinois is grappling with those consequences, and
the 2010 Sexual Assault Evidence Submission Act provides unprecedented potential
for rape reform. Given the large number of untested kits in Illinois local law
enforcement storage and the significant resources necessary to complete the
task, resolving the way Illinois deals with its untested rape kits and ensuring
the success of the 2010 law will require the continued leadership of many of
Illinois’s elected officials. In order for laws like the Sexual Assault
Evidence Submission Act to have concrete results for rape victims, Illinois
will need to demonstrate greater commitment, in both oversight and resources,
to enforcing its laws on rape kits. The value a state places on its rape kits
is one measure of how seriously it takes the crime of rape and the victims who
report sexual violence. Testing rape kits has a practical effect on criminal
justice outcomes, but it also sends an important message to rape
victims—that their cases matter.

I. Methodology

This report relies on data collected by Human Rights Watch
over the course of an ongoing, 10-month investigation into rape kits in
Illinois. During the course of our research, Human Rights Watch conducted 304
telephone or in-person interviews with police officers, chiefs of police and
police executives, crime lab personnel, crime lab directors and officials,
sexual assault forensic nurses, rape treatment providers, elected city
officials, victims of rape, family members of rape victims, rape victim
advocates, state and city sexual assault organization directors and senior
staff, national sexual assault and victim’s rights organizations’
directors and senior staff, senior staff at the US Department of Justice Office
of Justice Programs, civil attorneys, public defenders, county attorneys, state
legislators, officials at the Illinois Office of the Attorney General, local
newspaper reporters who have covered the issue of rape kit backlogs
extensively, and statisticians from state and city criminal justice statistics
offices.

We conducted on-site visits to the Illinois State Police
crime labs and evidence storage facilities in Springfield and Chicago.

We submitted more than 260 requests under the Illinois
Public Records Act to every county and the most populous cities in the state,
as well as to the Illinois State Police crime laboratory system. We requested
rape reporting, arrest, prosecution, conviction, and dismissal rates, and
documents pertaining to the collection, processing, and backlog of rape kits.
The records requests were mailed out of Human Rights Watch’s Washington,
DC, office on or around June 9, 2009, and analysis began in late April. Any information received after we began data analysis was not included in the report.

Data Analysis Methodology

Data arrived from city and county law enforcement agencies
in a variety of formats. While some departments provided data in aggregate
form, others submitted electronic and paper files of individual cases. When individual
case files were submitted, Human Rights Watch staff compiled and aggregated
statistics. Data was then entered into a database and subsequently cleaned for
errors. All data analysis was completed using statistical software (SPSS v.17).

In addition to the data obtained through our public records
requests, Human Rights Watch obtained data on reported rape and rape arrests
from the Illinois Uniform Crime Reports.[19] Population and
demographic data for selected cities and counties was obtained from the American
Community Survey 3-year estimates (2006-2008).[20] Data analysis
mainly consisted of descriptive statistics including frequencies, rates, and
cross-tabulations.

While Human Rights Watch’s public records requests
asked for data corresponding with the years 1995 through 2009, agencies
provided data for an assortment of years. Some agencies provided reported rape
and arrest data for one set of years, and rape kit testing data for a different
set of years. When this occurred, analysis of the rape kit data only included
reported rapes and arrests from the corresponding years.

There were three cities (Du Quoin, Charleston, and
Centralia) where the years for rape kit data and the corresponding years for
reported rapes and arrests could not be isolated because reported rape and rape
arrest data was aggregated, making it impossible to extract data from specific
years. In these cases, estimates for year-specific reported rapes and arrests
were generated assuming a linear trend in rapes and arrests.

Human Rights Watch requested information from 264 law
enforcement agencies and received no response from 80 departments (30.3 percent).
An additional 36 (13.6 percent) agencies that did respond to the initial
request refused or failed to provide us with the requested data. Seventy (27.2
percent) agencies provided Human Rights Watch with all of the data requested
while 78 (29.5 percent) provided at least partial answers to our requests.[21]Of those agencies that provided Human Rights Watch with full or partial
data, 104 were city police departments and 44 were county-level agencies.

Data requests were sent to 162 cities. Human Rights Watch
received no data from 58 city police departments, partial data from 55 departments,
and complete data from 49 cities. Of the 20 largest cities in Illinois, Human
Rights Watch received partial or complete data from 15 police departments. Human
Rights Watch also requested data from 102 county sheriff’s departments.
Twenty-one counties provided complete data, 23 provided partial data, and 58
counties did not provide data.

The majority of the data sent by agencies failed to fully
comply with the public records request. Only 33 percent of the agencies
responded with data that was complete or did not include errors. The most
common errors concerned the lack of information (either not answering a question,
or responding that they did not know the answer to a question) on the status of
rape kits including whether or not they were tested and where they were being
stored.

Of the 148 agencies that responded with data to our public
records request, 85 percent provided information on rape kits. However, data
provided on rape kits, including the end-results of rape kits, was often
incomplete, uncertain, or unknown. While most departments that responded could
provide a total number of rape kits collected, many could not determine the
destinations or final results of the kit. In many cases, departments required
Human Rights Watch to comb through boxes of evidence they provided in response
to our request in order to investigate final destinations of rape kits. Given
these failings, the total statistics aggregated here cannot be assumed to tell
the entire story of DNA rape kit processing in Illinois. Nevertheless, the data
in this report are the best possible estimates of the administering, collection,
processing, and storage of rape kits in Illinois given the data presented by
law enforcement agencies.

II. Recommendations

To the Illinois General Assembly:

Pass legislation requiring law enforcement to notify
sexual assault victims of the testing status of their rape kit within
three months of its collection and periodically thereafter until the
testing is completed;

After the Illinois State Police present their rape kit
backlog reduction plan as required by the 2010 Sexual Assault Evidence
Submission Act , approve increased funding to the Illinois State Police
necessary for the testing of all booked rape kits;

If this increased funding is not approved,
establish uniform, objective statutory criteria for how rape kit testing should
proceed in Illinois. This criteria should require that felony sexual assault
cases cannot be rejected or closed until a rape kit in the case has been
tested;

Create a permanent rape kit task force to exercise
oversight of the implementation of the 2010 Sexual Assault Evidence
Submission Act; and

Create a policy to require law enforcement
to notify victims of their rape kit’s testing status within three months
of its collection; and

Require local law enforcement officers to participate in attorney
general training on public records request responses.

To the Illinois State Police crime labs:

Create monthly public reports on the number of rape kits
tested each month, including the time it took for the testing’s
completion;

Establish a system for simultaneous, electronic
notification of the crime lab, law enforcement, and prosecutors when a DNA
profile matches a profile in the Combined DNA Index System (CODIS) (a
“cold hit”);

Address crime lab capacity concerns by securing the funding
and space for the DNA analysts required to test every booked rape kit in a
timely manner;

Report to the governor, General Assembly, and attorney general
on implementation of the 2010 Sexual Assault Evidence Submission Act; and

Prioritize funds from the federal DNA Casework and Backlog
Reduction Grant Program for the testing of rape kits.

To all state’s attorney’s offices:

Create uniform, state-wide guidelines for how sexual
assault cases are reviewed (such as the felony review process or similar
review processes) which would, among other things:

Require that a case not be rejected until a
standard number of investigative procedures have occurred, including testing a
rape kit where one is available, interviewing all witnesses in the case, and interviewing
both the victim and the suspect;

Ensure that “acquaintance rapes”
are subject to the same standards of proof as “stranger rapes”;

Require sexual assault victim-centered
training for all state’s attorneys who may interact with victims of
sexual violence;

To the Illinois Criminal Justice Information Authority:

Create data and technical support systems to assist local
and state law enforcement with tracking rape kit evidence, including
location, testing status, and investigative outcomes;

Create a uniform data tracking form which all law
enforcement must use to track their rape kit evidence; and

Create a sexual assault case registry, which would track
the process of sexual assault cases from report to final disposition.

To all hospitals in Illinois:

Work with other hospitals in densely populated regions to ensure
at least one hospital has a specialized treatment center for rape victims;

Provide administrative and funding support for nurses who
wish to receive Sexual Assault Nurse Examiner Training; and

Allow certified SANE nurses who are not emergency room
nurses to practice within the hospital’s emergency room, as is
standard with national best practices.

III. Keeping Track of Sexual Violence in Illinois

One way to measure what the government cares about is what
they choose to collect data on. One of the great hurdles of my work on sexual
violence is the lack of comprehensive data available for us concerning criminal
justice outcomes for felony sexual assault.

Rape is a crime with serious consequences, and it demands
serious attention. The traumatic impact of sexual violence is widely accepted
by experts, as documented by years of academic and government studies.[23]
As far as Human Rights Watch can tell, no agency in Illinois tracks the status,
progress, and outcome of rape cases from the moment the rape is reported until
the resolution of the case—making it very hard to get accurate data on
the true rate of reported rapes that lead to an investigation, arrest, or other
criminal justice outcome. In fact, numerous experts on sexual violence that
Human Rights Watch spoke with identified the lack of comprehensive
case-tracking systems, including the tracking of forensic evidence like rape
kits, as a key barrier to understanding what is happening with rape cases in
the Illinois criminal justice system and what effect rape kit collection and
testing has on case outcomes.

Incidences of Sexual Violence

At least 4,118 individuals reported being raped in Illinois
in 2008, the last year for which Human Rights Watch has data for the entire
state—an average of more than 11 rape reports made to the police every
day.[24]
These reported rape cases include sexual crimes committed against both adults
and children. Illinois, like much of the United States, is currently
experiencing a historic low in reported rapes, although it is important to note
that rape is traditionally an underreported crime. Comprehensive academic
studies estimate that reported rapes represent 10 to 20 percent of all rapes,
and that one in every six women in the US will be the victim of a rape or an
attempted rape in her lifetime.[25]
Polly Poskin, executive director of the Illinois Coalition Against Sexual
Assault, an association of community-based rape crisis center, said, “We
know that most rapes go unreported. It is a very hard crime to report,
especially given how many cases languish before being closed without an arrest
or charges.”[26]

While reported rapes have decreased in Illinois in the past
decade arrest rates—the number of reported rapes leading to an
arrest—have also declined. In 1999 the arrest rate for rape in Illinois
was 17 percent, meaning a rape victim who reported her rape had about a one in
six chance of seeing an arrest in her case. In 2008 the arrest rate for rape in
Illinois had declined to 11 percent, meaning a rape victim who reports her rape
has about a one in nine chance of seeing an arrest in her case. Illinois’s
2008 arrest rate of 11 percent was well below the national average calculated
by the FBI of 22 percent.[27]

While the declining arrest rate for sexual violence in
Illinois may involve many factors, studies have shown that testing rape kits
has an effect on the arrest rate for rape. For example, when New York City
eliminated its rape kit backlog and implemented a policy of testing every
future booked rape kit, the city’s arrest rate for rape skyrocketed from
40 percent to 70 percent.[28]

Illinois’s data management failure is symptomatic of
its poor response to rape. We compared Illinois data provided to us for exactly
the same years and jurisdictions with that contained in the state’s
Uniform Crime Reports (UCR). Only four cities provided the same number of
reported rapes in data sent to us and to the UCR. Data a jurisdiction provided
to Human Rights Watch and the data provided to the UCR differed by as much as
275 percent. This comparison provides evidence of inconsistencies in the
reporting of rape statistics and the need for data management systems—and
protocols for reporting rape statistics—to be standardized throughout the
state’s police and sheriff’s departments. We believe that the poor
data management is indicative of a broader failure to respond to rape in the
state of Illinois.

Police alone are not to blame for the poor criminal justice
response to rape. In various jurisdictions in Illinois,[29]
prosecutors (referred to as state’s attorneys) are involved early in an
investigation through a process that some jurisdictions refer to as
“felony review” (other jurisdictions have similar programs, but do
not refer to them as “felony review”). With each practicing
jurisdiction creating its own felony review (or felony review-like) procedures,
police can charge a person with a felony only after they obtain pre-approval of
the charges from a state’s attorney. For this reason, police will often
wait to proceed with a rape investigation (including making an arrest) until
the state’s attorney’s office has finished the review process and
has either accepted or rejected the case for charges. Human Rights Watch spoke
with a police official in Illinois who noted, “If the state’s attorney
is going to reject the case, we don’t want to put a lot of work into it
until we know for sure the case is going to move forward with them. I often
wait to proceed too far in a case until I know what the state’s attorney
is going to do with it.”[30]
This can have an adverse effect on ensuring arrests and prosecutions for any
case awaiting felony review, including rape cases. As one rape victim advocate
told Human Rights Watch,

When police place a sexual assault investigation on hold
until they get word of the felony review outcome … the state’s
attorneys are getting cases presented to them without much investigative
information, which in turn may make it more likely that the state’s
attorney will reject the case because of weak evidence. And once a
state’s attorney rejects a case, the police are going to close the case
because they know it is not going to go anywhere.[31]

The process of felony review may have a dampening effect on
arrest rates. There is no comprehensive, publicly available state data on the
charging, prosecution, and conviction rate for the crime of felony sexual
assault. However, from interviews, Human Rights Watch heard anecdotal evidence
of the difficulty of getting charges of felony sexual assault approved by the
prosecutor’s office.

Rape advocates’ frustration with the felony review
process in Illinois was summed up in a letter from 10 sexual assault groups in
Illinois to the Cook County (Chicago) State’s Attorney’s Office.
They note that in Illinois, while case law holds that “credible victim
testimony” is sufficient to support a felony sexual assault conviction
and that “corroborating evidence” is not necessary, state’s
attorneys seem to require additional evidence from rape cases in order to
authorize charges.[32]
The letter states:

We believe that the Cook County State’s Attorney’s
Office is generally not

authorizing felony charges for sexual assault reported by
victims of non-strangers unless there is “corroborative evidence”
such as bodily injury, a third-party witness, or an offender confession …
This practice protects most rapists from the threat of criminal prosecution,
devastates most victims who seek criminal justice assistance, and leads to the
continued silence of most victims of sexual assault.[33]

These advocates included a list of 22 women raped in Cook county
whose cases were not approved for felony charges by the Cook County State’s
Attorney’s Office despite the presence of “credible victim
testimony.”

The state’s attorney’s review process seems to
influence what happens to a victim’s rape kit. Human Rights Watch heard
from seven rape victims who were told by police that they were not going to
submit the rape kit in their cases for testing until the state’s attorney’s
office in their case had authorized felony charges.[34] The
Illinois State Police crime lab revealed that they sometimes returned untested
rape kit evidence sent to them for testing once they were told (either by the state’s
attorney’s office directly, or from the police department that sent the
kit for testing) that the case had been rejected by the state’s attorney’s
office for felony charges.[35]

In some cases, police departments were unaware that the rape
kits they sent to the crime lab had been returned untested because of a failure
by the state’s attorney’s office to authorize charges. For example,
the Chicago Police Department, which told Human Rights Watch that it sends
every booked rape kit to crime lab for testing, recently discovered that some
were being returned untested.[36]
In February 2010, at the request of Human Rights Watch, the Chicago Police Department
conducted a storage facility audit of rape kits collected between 2007 and 2009,
and found that 88 rape kits sent to the crime lab were returned untested; an
unspecified number of those were returned because the state’s attorney
had closed the case.[37]

National studies have shown that cases in which a rape kit
was collected and contained DNA evidence of an offender were significantly more
likely to move forward in the criminal justice system than cases in which there
was no rape kit collected, or in which none was tested.[38] Studies
have also found that the existence of forensic or physical evidence, such as
the type of evidence stored in a rape kit, is an important predictor of
prosecutors’ decisions to bring charges in a case.[39]
There is also emerging evidence that juries have come to expect DNA evidence in
order to convict a defendant.[40]
These findings point to the importance of rape kit collection—and
testing—for prosecuting cases of sexual assault.[41]

Data on Illinois’s Rape Kit Backlog

During the course of its research into the rape kit backlog
in Illinois, Human Rights Watch encountered numerous obstacles which made it
difficult to get an accurate account of the status of rape kits collected in
the state, obstacles that also affect treatment of sexual assault in the
state’s criminal justice system for tracking rape kits by police and
sheriff’s departments once booked into their evidence storage facilities
lack uniformity across jurisdictions. While the 2010 Sexual Assault Evidence
Submission Act will enhance how rape kits are tracked in the state,[42]
at the time of this report’s printing, there are no state guidelines
regarding how jurisdictions should track rape kits, record the status of rape
kits, or format chain of custody and incident reports. Until Human Rights Watch
requested the rape kit data, many police departments had never counted their
untested rape kits or set up a system to track such kits.

In total, from rape kit information provided by 127 agencies
to Human Rights Watch, at least 7,494 rape kits were entered into law
enforcement evidence in Illinois in recent years falling within the requested
dates of 1995 to 2009. Law enforcement agencies reported that 3,568 (47.6
percent) of these kits were sent to crime labs, and knew that only 1,474 (19.7
percent) of the kits were tested. Police and sheriff’s departments also
reported that a total of 4,173 kits were presently stored in local facilities,
38 rape kits were stored with the Illinois State Police, and 1,890 kits were known
to be destroyed.

Human Rights Watch found that in Illinois, most (69 percent)
reported rapes do not result in the administration of a rape kit. Police and
sheriff’s departments could only confirm that 6 percent of reported rapes
resulted in the testing of a kit by a crime lab. Departments confirmed that
more kits were known to be untested than tested. Less than 20 percent of rape
kits entered into law enforcement evidence could be confirmed as tested,
compared with over 25 percent that were confirmed as destroyed.

Human Rights Watch is deeply troubled by the difficulty encountered
gaining access to rape kit data in Illinois, and believes it indicates systemic
failure to prioritize and process rape kits in the state. Many law enforcement
entities do not have electronic data tracking systems, meaning they had to go
through their paper files to try to determine the number of rape kits booked
into their storage facilities and the testing status of the kit. Our requests
for these simple records were often rejected because of the burdensome nature
of the paper search. Other jurisdictions simply resorted to photocopying their
incident and chain of custody reports, which presented information in many
different formulas and formats. Follow-up phone calls would sometimes clarify the
information we sought, but not always. For some jurisdictions, we were unable
to establish information on rape kits because of a lack of clarity in the
records provided to us. The response from a public records official from Park
Ridge Police Department to our question about what certain records meant is
typical: “We simply don’t know. Your guess is as good as
mine.”[43]

The manner in which different law enforcement agencies
responded to the identical public records request highlights the chaotic nature
of law enforcement data management in Illinois, and the need for the data
tracking requirements contained in the 2010 Sexual Assault Evidence Submission
Act and other standardized data management protocols. The majority of agencies
provided their data electronically; however, at least 35 agencies mailed Human
Rights Watch boxes or envelopes of paper documents, and several agencies mailed
us nearly 1,000 separate documents. While 51 percent of agencies who provided us
with information did so in a single document containing data, the other 49
percent sent multiple types of documents requiring Human Rights Watch to piece
together whether reported rapes resulted in rape kits being taken and whether
rape arrests occurred.[44]
Several agencies simply submitted police narrative reports of all reported rape
cases, which required Human Rights Watch to determine through reading the
narratives whether rape kits were taken in each case.

There were also instances of agencies providing, or failing
to properly redact, sensitive identifying information in their public records responses.
More than 25 agencies supplied victims’ names and 22 agencies also gave
suspects’ names. In total, more than 1,000 victims’
names—nearly 100 of them child victims—were handed over to Human
Rights Watch from public records requests. Victim and suspect addresses,
telephone numbers, and social security numbers were also given by a number of law
enforcement agencies. Several agencies submitted the private information of
juvenile victims. In an egregious error, DNA test results were also mailed to Human
Rights Watch in response to the public records request, which did not—and
could not legally—have sought such information. These errors in public
record data management occurred despite the fact that the Illinois Office of
the Attorney General offers comprehensive data training to law enforcement
offices in Illinois. It is troubling that, despite receiving adequate public
records training, law enforcement departments continue to make these serious
mistakes.

Illinois is not alone in its struggle to maintain rape kit
data. According to a 2009 report prepared for the National Institute of
Justice, researchers surveyed over 2,500 police departments across the country
and found that “larger police agencies reported significant difficulty
answering questions about unsolved rape and property cases because this
information was not maintained in a centralized system.”[45]
In fact, 60 percent of law enforcement agencies who responded to the national
survey did not have computerized tracking systems for their evidence.[46]

Determining what Illinois does with the rape kits collected
by the police is important to addressing sexual violence in Illinois, and
providing justice to the thousands of victims who report their rape to the
police every year.

One Case Raises Questions on Rape Kit Record-Keeping in Chicago

On April
20, 2007, after a night out dancing in Chicago, Stephanie H. (pseudonym)
returned to a friend’s house with her friend’s boyfriend. After
her friend went to sleep, the boyfriend came into the living room where
Stephanie was sleeping, pushed her to the ground and raped her.[47]
Within 48 hours of her assault, Stephanie went to the hospital where a rape
kit was administered.[48]
According to Stephanie’s medical records, which Stephanie shared with
Human Rights Watch, a rape kit was taken and the nurse’s examination
found evidence of forced penetration,[49] in direct
opposition to the perpetrator’s claims that “nothing happened
that night.”[50]

For two
years Stephanie repeatedly called the Chicago Police Department—at
times as frequently as every week—to inquire about her case: “I
was going through panic attacks in the middle of the day. I couldn’t
breathe. Even in New York I was terrified I would run into him…. I
couldn’t sleep or eat. Why is it that I had to work so hard and still
nothing got done...? For two years I forgot what it was like to be
happy.”[51]

“I
thought that if I kept on calling and hounding, they would get things done
faster…. I was polite and well-spoken. I begged. I got a second
detective to talk [to me about the case] … and relived the experience
all over again.”[52]
But eventually, Stephanie was informed that no charges would be brought
against her rapist.

The
Chicago Police Department’s report of Stephanie’s case tells a
very different story, and illustrates a fundamental problem with their record
keeping.

When Human
Rights Watch first inquired on Stephanie’s behalf for her police
report, we were told that we could only receive a redacted copy of her report
because, “this case is still open.”[53]
When we asked why the case was open even though Stephanie was informed of the
contrary, the officer responded, “I don’t have the authority to
answer…. They could be waiting on more evidence.”[54]

When Human
Rights Watch received the police report, its contents were inconsistent with
Stephanie’s hospital records. In the police report the responding
officer on the case concluded, “Vict[im] went to [redacted] hospital
for medical evaluation. Per Dr. [redacted], vict[im] in good condition. Will
be treated and released. No rape kit will be administered.”[55]

We asked a
representative from the Chicago Police Department to clarify, and were
informed that the existence of rape kits are included in the initial police
report, and in Stephanie’s case, “it looks like there was no rape
kit.”[56]
When we inquired why a hospital report indicated a rape kit while the police
report did not, the department told us they did not know.[57]

When
Stephanie learned that the police report indicated that no rape kit was
taken, she told us, “I am astounded. I thought that my experience with
the police could not get more demoralizing. To learn that they don’t
even have a record of my rape kit, when I can’t stop thinking about the
experience of having the kit taken, adds on to my disbelief about this whole
process.”[58]

As of this
writing, despite more than nine requests to the Chicago Police Department for
records on their rape kit data, Stephanie’s case report is the only
complete response to our public records request for rape kit information that
we have received. In an interview with the Chicago Police Department, representatives
told Human Rights Watch that it is official Chicago Police Department policy
to send every rape kit to the crime lab for testing.[59]
While we do not know if other survivors—like Stephanie—handed
over their rape kits to the Chicago Police only to wait for years without
justice, we do know that the effect of the experience on Stephanie has been
profound:

After
this experience, I don’t feel safe anymore. I used to think that if
something happened to me, the law would protect me. I don’t think it
will anymore. I am a tough girl, but it made me feel like if something
happened, the law isn’t there for me. It doesn’t really work.[60]

IV. Rape Kit Evidence Collection in Illinois

Special care is required in the collection of rape kit
evidence.[61]
Sexual Assault Nurse Examiners (SANEs) are nurses who receive special training
in how to provide appropriate medical, forensic, and emotional care to rape
victims, and can provide 24-hour, first-response care to sexual assault
patients in a medical setting.[62]
In contrast, emergency room physicians and nurses often have little or no
training on the medical treatment of rape victims, or on how to conduct a
forensic rape kit exam.[63]
The importance of SANEs is reflected in the creation of a SANEs’ training
program out of the Illinois Office of the Attorney General, which has classroom-trained
more than 530 nurses through its free training program.[64]

While no system exists to track SANE resources in Illinois,
experts Human Rights Watch spoke with during the course of our research agree
that, despite a robust training program, there is still a shortage of SANEs in
the state, in part because of hospitals’ unwillingness to support the
hiring and training of such nurses full-time. Shannon Liew, SANE Coordinator
for the state of Illinois, estimates that of the over 530 nurses participating
in the attorney general’s SANE training in the past five years, only
approximately 100 nurses have become fully SANE certified (that is, have
received both classroom and clinical training), and of these, not all are necessarily
practicing and most are not full-time SANEs.[65] National experts
estimate that to adequately meet the needs of a community, there should be an
average of 15 full-time SANEs per 1 million people, although many jurisdictions
around the country do not meet this recommendation.[66]
This means Illinois, with a population of nearly 13 million, would require 195
full-time SANEs, or about twice the estimated number fully trained and
certified in the past six years.[67]
However, the 15 nurses to 1 million residents recommended ratio assumes that
nurses are accessible to victims; considering the large rural population in
Illinois, the required number of SANEs is probably higher. A significant
obstacle for nurses who wish to obtain SANE certification in Illinois is that
they are not reimbursed for the cost of clinical training nor paid for their
time away from work.[68]
Numerous sexual assault experts and nurse examiners told Human Rights Watch
that the lack of hospitals support for sexual assault nurse examiners is the primary
cause of the shortage of SANEs in the state.

SANE programs were established, in part, to address the
logistical and emotional difficulties victims face when reporting their rape to
a hospital emergency room.[69]
The lack of SANEs can have a negative impact on a victim’s experience at
the hospital. An Illinois rape victim told Human Rights Watch of arriving at a
hospital in the hours after her rape. The emergency room doctor came into the
room and began questioning the rape victim about the details of her rape. When
she told him the rape occurred while on a date, the doctor questioned whether
there was any need for him to collect a rape kit: “I don’t want to
waste my time if people can’t agree whether or a not a rape even occurred
here.”[70]

Untrained ER personnel’s inexperience with collecting a
rape kit can be just as traumatizing to rape victims as their judgmental
attitudes. A rape victim advocate told Human Right Watch about emergency room
doctors who have never seen a rape kit before, nor administered one.[71]
One doctor read out loud the instructions on the rape kit package as he
performed each step.[72]
National research has shown that rape victims who are treated by emergency room
doctors and nurses are more likely to characterize their experience as “upsetting”
and “distressing,” and report feeling “re-victimized”
during the rape kit examination.[73]

The shortage of sexual
assault nurse examiners can have an impact on the successful collection
and testing of rape kit evidence. In Illinois, crime lab personnel,
prosecutors, and police told Human Rights Watch of instances in which the way
the rape kit evidence was collected negatively impacted progress of the case. A
prosecutor told Human Rights Watch of a case where an emergency room doctor
failed to collect DNA swabs from every place where the victim indicated the
perpetrator had ejaculated, and instead only swabbed her vaginal area. The
prosecutor told us,

The victim claimed that the suspect had ejaculated in her
belly button. The suspect … denied ejaculating in the victim’s
belly button. I had hoped to test a swab taken from the victim’s belly
button in order to back up the victim’s version of events and discredit
the suspect at trial.… [T]he lab informed me that the doctor had not
swabbed the victim’s belly button … it was incredibly frustrating
to move forward without crucial evidence.[74]

In a letter to Human Rights Watch, the DNA criminalists in
charge of sex crimes at the DuPage County Crime Laboratory noted,

All of our policies [on sexual assault kit testing] assure
that sexual assault evidence submitted to [the lab] will be analyzed with the
utmost of care. What cannot be assured, however, is that all sexual assault
evidence will be collected in the best manner possible, or even that it will be
collected at all.… Many hospitals in DuPage County are not adequately
staffed with SANEs. Some hospitals have SANEs but not on all shifts.… If
the emergency room personnel are not adequately trained to recover and preserve
this evidence, analysis of that evidence and later arrest and prosecution of a
sexual predator may be compromised.[75]

A shortage of SANEs in Illinois may be one reason why only
31 percent of reported rapes lead to the collection of a rape kit in Illinois. National
studies have shown that the availability of SANEs impacts the criminal justice
process. For example, a 2009 National Institute of Justice study found that
rape cases in which a sexual assault nurse examiner collected the evidence had
a greater chance of leading to successful prosecution.[76]

Once a rape kit is collected from a victim who reports the
crime to the police, the rape kit will be taken into police custody (booked
into police evidence) for storage before testing. Many rape victims assume
their rape kit will be tested, but Human Rights Watch research in Illinois
indicates thousands of rape kits in police storage were never sent to the crime
lab for testing.

V. Untested Rape Kits in Illinois Police Storage
Facilities

I would guess that the vast majority of kits I have collected
have never been sent for testing. Or, at least, the results were never used,
because if they were, I would have been called upon to testify about how I
collected the kit. In my 10 years doing this work, I have collected at least
500 kits and only heard back from the police about one of the rape kits.

The day after my rape kit was collected I went to the
police for my interview. The police officer spent the whole interview asking me
about my character, my actions that night. He didn’t seem interested in
hearing about my rapist’s behavior. At the end of the interview, he told
me he didn’t think I had a very strong case. I called for months
afterwards to see if they were going to test the rape kit, but I never heard
back.

As of May 2010 there were at least 3,926 rape kits in
Illinois storage facilities that law enforcement confirmed were not tested, based
on public records data sent to Human Rights Watch from 148 agencies. This
number may be higher, as it only represents those rape kits where law
enforcement could confirm their status. There are an additional 2,094 kits in
storage that law enforcement could not confirm whether they were tested or
untested. The vast majority of these untested rape kits were never requested
for testing. But in some instances, the rape kits in police storage were sent
for testing, but returned from the crime lab untested because the case was
closed by the state’s attorney’s office.

Most individual police department policies that Human Rights
Watch reviewed in the course of its research for this report still allowed
detective or department discretion in deciding which rape kits to send to the
crime lab, a practice which will be remedied by the 2010 Sexual Assault
Evidence Submission Act’s requirement that all rape kits collected by
police be sent to the crime lab for testing within 10 days of collection.[80]

Law enforcement gave Human Rights Watch various reasons for
not sending rape kits to the lab for testing. By far the most common reason was
the belief that testing was not necessary in an “acquaintance
rape”—when the identity of the alleged perpetrator was known to the
victim no matter the history, or lack thereof, in their relationship. Law
enforcement held this view despite the possibility that the collected evidence
could connect a suspect to multiple rape kits and establish a serial rapist,
discredit the suspect’s version of events and affirm the victim’s
version of events, or exonerate innocent suspects. As one police official told
Human Rights Watch, “We don’t need the DNA test when we know who
the suspect is already without it. It would be a waste of everyone’s time
and money.”[81]

Police also told Human Rights Watch they would not submit a
rape kit unless they thought they had a “winnable” case on their
hands. For example, one police official told Human Rights Watch in explaining
why his department did not send every rape kit for testing, “I
don’t know if you know about our community but we are a university
community—98 percent to 99 percent of criminal assaults involve
acquaintances and end up without prosecution. That may be where the issue
is—a consent issue. A lot of our sexual assault reports [involve sexual
assaults that] start out as consensual sex but then turn non-consensual.”[82]

Other officers have pointed out to Human Rights Watch that
victim credibility is often the key issue in deciding how to move a case
forward, including whether to submit the rape kit for testing. As one officer
told Human Rights Watch “In my experience, many rape victims are lying. They
come forward to hide from their parents that they had sex with their boyfriend,
or they want attention. In other cases, the victim’s story doesn’t
make sense, or maybe it does but there is no way a jury is going to believe her
over the suspect.”[83]

Backlogs at the state crime laboratory may also influence
officers not to send in rape kits. Some officers told Human Rights Watch that they
don’t submit the rape kit for testing because they know it could be
months, if not years, before it gets tested. An investigative detective told
Human Rights Watch, “If the evidence is absolutely crucial to making the
case, I will beg the crime lab to test the kit, and put it closer to the top of
the pile. But if I am not sure the rape kit test will add anything to the case,
I will save up my favors with the crime lab for another case.”[84]

Not sending a rape kit to the crime lab for testing can have
a significant impact on a victim’s experience with the criminal justice
system. One victim told Human Rights Watch, “I feel so stupid for going
to the police. What made me think they would take my case seriously? I would
feel better if I had just kept my rape to myself.”[85]
Even if law enforcement decides not to test a rape kit, communicating that
decision to the victim in a timely and informative way may ease the
victim’s experience. As one rape victim told Human Rights Watch,
“They may have had a reason not to test my kit, but I wouldn’t know
because I didn’t get any information about my case, much less information
about why certain investigative decisions were made. Just knowing the reasoning
behind the police’s decision not to move my case forward may have helped
me a little.”[86]

Even in instances where the police do move an investigation
forward, not sending the rape kit for testing to the crime lab in a timely way
can have negative consequences for the victim. Human Rights Watch spoke with a
family member of a 7-year-old child who was repeatedly raped by her stepfather
over a period of two years.[87]
When she reported what was happening to her mother, she took the girl to the
hospital and the nurse noted the presence of semen. If the police had tested
the rape kit and found the stepfather’s semen, the state could
immediately move forward with rape charges, as there is no defense for
statutory rape. Although the police were moving the investigation forward, and
charges were eventually filed against the stepfather, the rape kit sat untested
in police storage for more than a year. During that time, the victim’s
family had gone to family court to obtain an order of protection against the
stepfather. In the absence of the rape kit evidence as proof of the
stepfather’s crime, the victim had to testify at the hearing,
“which was a very difficult experience for her,” a family member
told Human Rights Watch.[88]
The daughter also seemed to feel that the rape kit evidence was important.
“Although we believed her story, I think she was looking for some outside
evidence that what she was saying was true. The stepfather was denying anything
had happened, and the daughter seemed to grow increasingly anxious to have
proof in her case that what she knew happened had really happened.”[89]
After a year, the police finally sent the rape kit to the lab for testing, and
the test results showed that the stepfather had raped the child.

The large number of untested rape kits in Illinois storage
facilities, and the lack of knowledge on the part of most law enforcement
agencies of their true number, make it especially important that
Illinois’s response to its rape kit backlog is part of a comprehensive,
specific, state-wide plan that is made known to the public and subject to
significant monitoring and oversight. The 2010 Sexual Assault Evidence
Submission Act, if effectively enforced, will provide such a plan and result in
each of these untested rape kits, as well as every future rape kit booked into
police evidence, being sent to Illinois state crime lab system (or other
designated laboratory) for testing.[90]
But as Human Rights Watch’s research demonstrates, the crime lab already
has its own backlog. The arrival of backlogged kits from police departments
will exacerbate the problem. The crime lab simply does not currently have the
capacity or resources to test every booked rape kit in Illinois in a timely
manner.

VI. Untested Rape Kits in Illinois Crime Labs

In my experience, I have seen the fact of delays at the
crime lab deter police even more from sending in a rape kit for testing. They
want the case resolved, and if they know the rape kit evidence won’t come
back for a year, they would rather not wait to close a case for that long. I
have also seen police use the fact of delays as an excuse to my clients who
want their rape kit tested. They tell them: “Even if we send in the kit,
you won’t get a result back for a year, so why not just try putting the
rape behind you instead?”

Once a police officer has requested that a rape case be sent
for testing, it will be sent to one of the eight Forensic Biology/DNA casework
laboratories operated by the Illinois State Police and placed in a queue for
testing.[92]

While the vast majority of untested rape kits in
Illinois currently reside in police storage facilities, a second backlog exists
in police crime lab facilities where rape kits are submitted for DNA analysis,
but wait, often for a very long time, to be tested. These delays have
significant impacts on the criminal case, and delay justice for rape victims. As
one law enforcement official put it, “I have seen rape cases delayed by
over a year while we waited for a test result. This means we lose momentum in
the case—witnesses move and can’t be tracked down, the trial start
date has to be continually pushed back, and sometimes witnesses grow weary of
the toll the case is taking on them and start to wonder if they want to be part
of it anymore.”[93]

Rape kit testing delays appear to be caused primarily by a
lack of capacity at the state crime labs to handle each DNA request they
receive, and secondarily by the state’s ineffectiveness in addressing the
needs of the laboratory system. The 2009 Management and Program Audit of the
Illinois State Police’s Division of Forensic Services (“Auditor
General Report”), found that the number of total backlogged cases
(including all types of cases and forensic analyses) at the state’s crime
labs increased more than 200 percent from 2002 to 2007, from 3,426 to 10,387
cases.[94]
During that same time period, the number of forensic scientists at the lab
actually declined by 3 percent.[95]

Illinois is not alone in its struggle with crime lab
backlogs. Crime labs across the country are inundated with DNA testing
requests. The most recent federal census of publicly funded crime laboratories—released
in 2008 using data collected in 2005—shows that during 2005, public crime
labs saw their DNA backlog double from the beginning to the end of the year,
and that public crime labs across the country would need to increase their DNA
staff by 73 percent to keep up with DNA testing needs and requests.[96]

While crime labs in Illinois have backlogs in nearly every
kind of criminal case, the backlog of evidence in rape cases is particularly
pronounced with data showing that the crime lab cannot keep up with current
rape kit testing demand, much less the increase in demand that will be caused by
the 2010 Sexual Assault Evidence Submission Act. Once the Illinois State Police
submit their rape kit reduction plan as required by the 2010 law,[97]
it is imperative that legislators approve the funding necessary to address the
lab’s increased capacity needs.

According to data the Illinois State Police provided to
Human Rights Watch, as of February 2009 there were approximately 622 Forensic
Biology cases (that is, all offenses including sexual assault) waiting for
testing in the state crime labs.[98]
In each year from 2001 through 2008, the ISP crime labs received anywhere from
2800 to 4400 rape cases, or an average of 230 to 360 rape cases per month.[99]
According to the ISP, they have the capacity to analyze about 277 cases per
month, which means every month up to 83 cases may be added to the testing
backlog.[100]
This struggle to keep up with testing is occurring even though the Illinois
State Police crime labs may not be receiving the vast majority of kits in law
enforcement custody.

The good news is that the Illinois State Police have made
progress in reducing the overall backlog of cases at their crime laboratories.
As of April 30, 2010, the ISP laboratory system reported a total statewide case
backlog of 6,197 cases, down significantly from the 10,387 cases cited in the
2009 Illinois Auditor General Report. These backlogs include all types of
cases, not just sexual assault cases. The average age of DNA cases worked in
April 2010 was 71.2 days. These backlogs are being reduced despite increased
case submissions of 5,800 Forensic Biology cases and 4,900 total DNA cases per
year. The elimination of the backlog has happened in part because of increased
staffing at the labs, increased use of overtime for employees, and the
implementation of efficiency measures.[101]

Nonetheless, as far as Human Rights Watch can tell, the
state does not track the average amount of time it takes for a rape kit to be
tested, from the moment a kit is sent to the lab to when the law enforcement
receive the test results. Law enforcement officials often describe waiting a
year for test results, and some reported delays of up to two years.

These delays can take a toll on all stages of a criminal
sexual assault case. In a survey of local police departments conducted in 2007,
46 percent thought that the Illinois State Police crime lab’s lack of
timeliness “negatively impacted a case in the past five
years.”[102]
In the worst instances, the results were so delayed that the case could not be
pursued. For example, one law enforcement official recounted, “I have
received lab reports in which a suspect DNA profile was identified after the
statute of limitations passed. It does little good to identify a suspect after
the period which prosecution might begin.”[103]
In other interviews conducted by Human Rights Watch, law enforcement praised
the Illinois State Police crime laboratories. As one officer told us,
“They do their best to meet the testing deadlines I request of them, and
if they can’t, they do an excellent job of communicating the situation
and helping me understand the reasons for any delays. But for the most part,
there are not delays of the kind that jeopardize my investigations.”[104]

Some law enforcement officials do not want to send—and
some state’s attorneys do not want to assess—a sexual assault case
for felony charges review until they have the crime lab results back. Law
enforcement agencies are also reluctant to make an arrest or charging decision
until the DNA results are back. This can delay movement in the case by months,
and even years. As one sheriff noted in the Auditor General Report, “By
the time almost any analysis has been completed and we received the report the
criminal case has turned into a cold case. Our average [wait time for crime lab
test] results from the past year is at 8 to 12 months.”[105]

Testing delays can impact the start of trial, and perhaps
jeopardize legal proceedings. According to a state’s attorney, “We
have already delayed the start of [a] trial four times, as we are waiting on
the [rape] kit results from the lab. The judge has threatened to declare a
mistrial if there is one more delay, and I am worried that the testing delay is
going to derail our case.”[106]

While the lack of crime lab capacity is a significant cause
of rape kit testing delays, the ISP’s ability to manage its crime
laboratories also contributes to the rape kit backlog. For example, the 2009
Illinois Auditor General Report found, among other things, that the ISP let
$19.3 million in state funds for forensic testing and $1.3 million in 21
federal grants lapse between fiscal year 2002 through fiscal year 2007;
specifically, of $1.5 million in grants received through 2008 for the explicit
purpose of testing sexual assault evidence, the Auditor General concluded that the
ISP failed to use more than $246,000, while the Illinois State Police disagreed
and stated that they only failed to use $48,800.[107]
The audit also found that the ISP transferred $6 million of those funds to
other non-forensic related purposes. In the same time period, the number of
backlogged cases at the ISP increased over 200 percent. Additionally, the Auditor
General Report found that the “ISP has underreported backlogged DNA
cases … providing inaccurate and misleading information.”[108]

While the Auditor General Report suggests that the Illinois
State Police has struggled to manage its crime labs effectively, principals
with the ISP told Human Rights Watch the department disagreed with many of the
points raised in the report. They have taken steps to improve tracking of grant
money and have increased transparency regarding the nature and scope of their
DNA backlogs.[109]

Enhancing the ISP crime lab capacity for more timely and
expansive rape kit testing will require more state and federal funding. The 2010
Sexual Assault Evidence Submission Act requires that the ISP submit a plan to
document how it will eliminate the rape kit backlog and handle the influx of
rape kits sent to them.[110]
Once the plan is submitted, the ISP should advocate for these resources, and
the legislature should approve the funding necessary to eliminate the rape kit
backlog and delays in testing new kits. Illinois is experiencing a significant
financial crisis, but public safety policies that will help apprehend violent offenders
and prevent future rapes are a necessary investment and a core government
responsibility.

Achieving this goal will require not just political will to
appropriate the necessary funding, but oversight to ensure that all funds
available are used effectively and efficiently toward the testing of rape kits.
In order to make sure that all money appropriated to the ISP crime labs for
rape kit testing is spent correctly, the legislature should require the ISP crime
labs to submit a detailed plan for how they will eliminate their rape kit
backlog and increase testing capabilities, and a legislative task force should
exercise oversight over their progress.

If the legislature does not provide the Illinois State
Police with the resources necessary to test every booked rape kit, then the
state must establish uniform, objective, statutory procedures by which rape kit
testing should proceed in the state. The law should make clear that a rape case
cannot be closed by the police or rejected by the state’s attorney unless
any rape kit evidence connected to the case is tested. The procedures should
allow law enforcement discretion not to test a rape kit if the case will
proceed regardless of the kit test result. This would ensure that law
enforcement take into account a certain amount of investigative information
before making a final decision on a rape case.

VII. Conclusion

The number of untested rape kits in Illinois points to
larger concerns with the way Illinois handles rape kits and rape
investigations. For rape victims to access justice, policymakers and law
enforcement officials in Illinois should ensure that all booked rape kits are
sent for testing as required by the 2010 Sexual Assault Evidence Submission Act.
But their responsibility does not end there. Law enforcement personnel, in
collaboration with rape treatment providers and with the support of elected
officials, need to create systems to ensure that every reported rape case is
thoroughly investigated and all leads are followed so that it is possible to
identify and arrest those responsible. As one rape treatment provider told
Human Rights Watch, “It’s time to show rape victims that we value
what they went through to have a rape kit collected. It’s an invasive
process that we ask nearly every rape victim to have done in the immediate
aftermath of perhaps the most traumatic event of their life. The least we can
do is test it.”[111]

The 2010 Sexual Assault Evidence Submission Act should ensure
that every booked rape kit is sent to the Illinois State Police crime
laboratory—or other designated laboratory—for testing. When it goes
into effect, Illinois will be the first state in the country to attempt to comprehensively
address its rape kit backlog. The new law provides Illinois with the
possibility of eliminating its rape kit backlog entirely. To ensure justice for
rape victims, Illinois must appropriate the funds and provide the stringent
oversight necessary to realize its goal of testing all rape kits in a timely,
effective manner.

Acknowledgements

Sarah Tofte, researcher with the US Program at Human Rights
Watch, researched and wrote the report. Brian Root, consultant with Human
Rights Watch, analyzed an immense amount of data and turned it into meaningful
information about how rape kits are handled in Illinois. Brian helped shape the
methodology of the report and created the graphs. At Human Rights Watch, this
report was reviewed by Alison Parker, director of the US Program; Meghan Rhoad,
researcher with the Women’s Rights Division; Aisling Reidy, senior counsel;
Joe Saunders, deputy program director; and Cassandra Cavanaugh, consultant to
the Program Office. Abigail Marshak, associate with the US Program, edited,
assisted with research, and contributed writing to this report. Layout and
production were coordinated by Grace Choi, publications director, Fitzroy
Hepkins, mail manager, and Abigail Marshak.

Also at Human Rights Watch, Stephen Steim, manager of
Leadership Gifts, provided invaluable assistance while the manager of Midwest
Development and Outreach in Chicago, as did Jobi Cates, director of the Chicago
Committee, and Renee Mechanic, coordinator for the Chicago office. Lorena Ros
took photos to accompany the report, which Anna Lopriore, manager of the
creative division at Human Rights Watch, coordinated to their final
presentation.

Our dedicated interns, who worked long hours out of the
goodness of their hearts, are responsible for helping organize our rape kit
data: Shani Adess, Nadia Ahmad, Megan Briskman, Julia Brown-Bernstein, Lendon
Ebbels, Milli Hansen, Max Lockie, Rosann Mariappuram, Cate Miller, and Demyia
Pridgen. We could not have written this report without their help.

External reviews of this report were conducted by the
Illinois State Police, in particular Arlene Hall and Scott Giles; the Illinois Office
of the Attorney General, in particular Cara Smith, Mary Anderson, and Wendy
Cohen; and the Illinois Coalition Against Sexual Assault, in particular Polly
Poskin and Lyn Schollet. Special thanks to Polly and Lyn for helping us
navigate the sexual assault community in Illinois, and Shannon Liew, coordinator
of the Crime Victim Services Division at the Illinois Attorney General, who
gave us facility access to document the process of collecting a rape kit. Also
thanks to the Illinois State Police for giving us access to their Springfield
and Chicago facilities.

[2]
The Illinois State Police crime laboratory also provided Human Rights Watch
with data on the aggregate annual total of cases of sexual assault evidence
submitted to the crime laboratory and aggregate cases of sexual assault
evidence moved forward through the testing process. This data was not used in
our calculations because it was not specific enough to track each rape kit from
its collection from the victim to its current status; extraction beyond the
aggregate was not possible.

[7]
International Covenant on Civil and Political Rights (ICCPR), adopted December
16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976,, ratified
by the United States on June 8, 1992; and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against
Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp.
(No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987,
ratified by the United States on October 21, 1994.

[8]ICCPR ,
art. 9. The UN Human Rights Committee (HRC), which oversees the implementation
of the ICCPR, has confirmed that the right to security of person in Article 9
means that persons have a right to protection from interference with their
personal integrity by private persons, see, for example, Delgado Paez v
Colombia, No. 195/1985, Decision of July 12, 1990.

[11]UN HRC, ICCPR,
General Comment No. 31, Nature of the General Legal Obligation Imposed on States
Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.21.Rev.1.Add.13.En?Opendocument
(accessed June 23, 2010).

[13]
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No.
46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, signed by
the United States on July 17, 1980.

[14]Committee
on the Elimination of Discrimination against Women, General Recommendation No. 19,
Violence against women, UN Doc. A/47/38, para. 24 (t), (1992), http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19
(accessed June 23, 2010). The Committee on the Elimination of Discrimination
against Women authoritatively interprets and monitors state compliance with
CEDAW.

[15]Vienna
Convention on the Law of Treaties, adopted May 23, 1969, entered into force
January 27, 1980, article 18.

[16]The Organization of American States (OAS) is a regional
organization which hosts a number of institutions known as the Inter-American
system. Its founding document is the 1948Charter of the OAS and it has 35 independent states of the Americas, including the US which was one of the original members in
1948.

[18]
Canada, Cuba, and the United States have not ratified the Convention. However, from
1962 until June 3, 2009, Cuba was suspended from participating in the
Inter-American system, a suspension that was lifted by OAS Resolution AG/RES. 2438
(XXXIX-O/09), http://www.oas.org/dil/general_assembly_resolutions_39_regular_session_honduras_june_2009.htm
(accessed June 23, 2010).

[24]The
reporting data include both adults and juveniles. Reporting and arrest data
were obtained through public records requests to the Illinois Criminal Justice
Information Authority, which is the state’s crime data tracking center,
and from the FBI Uniform Crime Reports, 1999-2008, http://www.fbi.gov/ucr/ucr.htm
(accessed November 13, 2009).

[25]
See for example, Patricia Tjaden and Nancy Thoennes, “Extent, Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey,”
National Institute of Justice, US Department of Justice Office of Justice
Programs, January 2006, http://www.ncjrs.gov/pdffiles1/nij/210346.pdf (accessed
February 23, 2009).

[29]
Human Rights Watch was unable to find any data on how many jurisdictions use
the felony review process, although a significant number of jurisdictions we
spoke with seemed to employ some form of the process.

[44]
Sixty-eight departments provided a single aggregated report containing some or
all of the requested data. Other agencies sent a variety of reports for each
reported rape case: 47 departments sent chain of custody reports, 33 sent
incident or offense reports, 11 sent lab evidence receipts, 30 sent evidence
logs, and others submitted data via phone calls or other methods.

[61]
Human Rights Watch telephone interview with Jennifer Pierce-Week, president,
International Association of Forensic Nurses, Arnold, MD, March 23, 2008. For
more information on the collection of rape kits, see for example, The Sexual
Assault Nurse Examiner-Sexual Assault Response Team web-site at http://www.sane-sart.com
(accessed January 20, 2009). Human Rights Watch observed the simulated rape kit
collection process in Illinois during a visit to the Cook County Child Advocacy Center on January 11, 2009. A model process would look like this: After intake
and counseling, which includes assessing and treating any critical care needs, the
patient is interviewed to obtain a history of the assault. Then, a nurse
practitioner conducts the medical and forensic examination. The victim
undresses while standing over a large sheet of paper, and anything that falls
from the clothing or body that may provide links to a perpetrator or a crime
scene (for example, hairs, debris, and carpet or clothing fibers) is collected
and placed in the rape kit. A sexual assault nurse examines the victim on a
gynecological table with stirrups. The nurse scans the body with an ultraviolet
light to find what may be otherwise undetectable semen or saliva that might
contain the assailant’s DNA. The nurse then swabs every part of the victim’s
body that the ultraviolet light fluoresces. The victim is examined from
“head to toe” to identify any physical injuries sustained during
the assault, which can include scratches, bruises, bite marks, ligature marks, and
burst blood vessels caused by strangulation. Every visible physical injury is photographed.
A magnifying digital camera called a colposcope—which is noninvasive and
can photograph inside body cavities without requiring insertion—is placed
near the anal, vaginal, and oral cavities to record any lacerations or other
injuries inside those areas. The nurse then collects other samples, such as fingernail
scrapings, pubic hair combings, and urine and blood, placing each in separate
envelopes and or tubes. The swabs are labeled and sealed in containers with
evidence tape. All of the evidence is then placed in a large white envelope—the
rape kit.